Illustrative Evidence in a Family Law Context
I. What is Evidence?
According to Black’s Law Dictionary, it is something that tends to prove or disprove the existence of an alleged fact, including testimony, documents, and tangible objects. The Law of Evidence in Virginia, by Charles Friend, quotes a more expansive definition of evidence, stating evidence is “any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.”
II. Illustrative Evidence
Non-testimonial evidence, which is all evidence excluding witness testimony, can be broken down into two basic categories, real evidence and demonstrative/illustrative evidence. Black’s defines real evidence as “physical evidence (such as a knife wound) that itself plays a direct part in the incident in question.” Other examples of real evidence would include the murder weapon, document at issue, or the actual product in a product liabilities case.
Conversely, demonstrative/illustrative evidence is introduced to assist the jury in understanding what happened in the case. Demonstrative/illustrative evidence would include such items as models, maps photographs, or diagrams used in conjunction with witness testimony to give the testimony greater weight. The case of Smith v. Ohio Oil Company provides an excellent example of the difference between real and demonstrative evidence. The opinion states, “Demonstrative evidence (a model, map, photograph, X-ray, etc.) is distinguished from real evidence in that it has no probative value in itself, but serves merely as a visual aid to the jury in comprehending the verbal testimony of a witness.” It is said its great value lies in the human factor of understanding better what is seen than what is heard. Demonstrative/illustrative evidence can also be used as visual aid to the judge and jury in comprehending real evidence, such as documents in a divorce case.
III. Illustrative Evidence in Family Law Cases
There is not a great deal of case law that addresses the use of illustrative evidence in a family law context. The Court of Appeals addressed the issue in Anderson v. Anderson. In Anderson, the husband introduced a flow chart which allegedly showed the tracing of his separate funds into two IRA accounts that were created during the marriage. The figures on the chart were not backed up by the requisite account statements. The husband’s tracing argument rested on only his testimony and flow chart. The court held the husband did not sufficiently trace his separate interest in the two IRAs, giving no weight to the husband’s testimony due to the lack of documentary evidence. As to the flow chart, the Court of Appeals stated “the flow chart, as a demonstrative, or illustrative, exhibit that played no actual part in the events before the court and that husband offered to explain and clarify his testimony, had no independent probative value.” Therefore, illustrative evidence must have its foundation in real evidence.
At the end of a family law hearing, the judge has all the evidence presented by both parties. As an advocate, we want the judge to adopt our position and rule for you. One way to increase the odds of this occurring is by making it easy for the judge to rule our way. We want the judge to believe that our position is logical and thus must be sustained.
Illustrative evidence is all the more crucial, because of the great deference shown trial judges by appellate courts. Rarely is a case reversed in a bench trial because of an evidentiary ruling. While it is always necessary to have a “plan B” if the judge inexcusably rejects the proffered illustrative evidence, we should be able to appeal to the court’s common sense and indicate how accepting the evidence will streamline the trial without omitting necessary proof. By using illustrative evidence, large amounts of evidence may be condensed for easier analysis.
Such illustrative evidence can be cited in closing argument and the court can be re-focused on crucial advocacy points. By focusing the court and condensing the amount of evidence which the judge must assimilate in order to reach our desired conclusion, we are maximizing our effectiveness as an advocate.
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